18 Green Paper on the presumption of
innocence
| (27492)
9128/06
COM(06) 174
| Commission Green Paper on the presumption of innocence
|
| Legal base | — |
| Document originated | 26 April 2006
|
| Deposited in Parliament | 19 May 2006
|
| Department | Office for Criminal Justice Reform
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| Basis of consideration | EM of 7 June 2006
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
18.1 The presumption of innocence is a principle of great antiquity
and common to the legal systems of civilised states.[42]
It is reflected in Article 6(2) of the European Convention on
Human Rights, which provides that "everyone charged with
a criminal offence shall be presumed innocent until proved guilty
according to law". In its essence the presumption of innocence
means that an accused person must be treated as not having committed
any offence unless and until sufficient evidence has been adduced
to satisfy an independent and impartial tribunal of that person's
guilt. These principles have been developed in extensive case
law of the European Court of Human Rights in relation to such
questions as conditions for detention prior to trial, the privilege
against self-incrimination, trials in absentia, the burden
of proof and the right of silence.
18.2 The Commission indicates that its interest in
the subject is two-fold. First, it wishes to assess whether cross-border
cases present a particular problem in this area and secondly whether
legislation at the EU level would enhance the mutual trust on
which mutual recognition of decisions depends. The Commission
indicates that it plans a further Green Paper later this year
on the gathering and handling of evidence and its admissibility
and that it will convene an experts' meeting in 2006 to discuss
the present Green Paper and that on evidence.
The Commission Green Paper
18.3 The Green Paper poses nine questions in relation
to the scope and operation of the presumption of innocence. It
sets out a brief review of the case-law of the European Court
of Human Rights and asks respondents if they agree with the content
and scope of the presumption as so described. A second question
seeks information on any special measures taken in Member States
at the pre-trial stage for preserving the presumption of innocence.
18.4 A third question relates to the burden of proof.
The Green Paper refers to three situations where it considers
that the case-law of the European Court of Human Rights indicates
that the burden of proof does not rest wholly on the prosecution,
these being strict liability offences (i.e. cases where the prosecution
must show the accused committed the act, but need not prove guilty
intention), offences of a less serious kind where the burden of
proof is reversed (i.e. cases where the prosecution proves that
the accused acted in a certain way, leaving the accused to show
an innocent explanation) and cases where property is confiscated
on the grounds that it represents the proceeds of crime. The Green
Paper asks respondents in what circumstances it may be acceptable
to reverse or alter the burden of proof and whether respondents
have experienced situations of cross-border co-operation in which
the burden of proof has created a problem.
18.5 A fourth series of questions relates to the
privilege against self-incrimination and the right of silence.
The Green Paper again refers to the case law of the European Court
of Human Rights, which has found that the privilege against self-incrimination
is a generally recognised international standard which lies "at
the heart of the notion of a fair procedure"[43]
and protects the accused against improper compulsion by the authorities
by requiring the prosecution to prove its case without resort
to evidence obtained through coercion or oppression. In the Green
Paper, the right of silence is described as applying to police
questioning and in court, giving the accused the right not to
testify and "arguably, the right not to disclose the nature
of his defence before trial". The Commission notes that the
laws of Member States recognise the right to remain silent during
the investigative phase when being interviewed by police or an
investigating judge and that according to its study of evidence,
in most Member States there is an obligation to advise the accused
of his right to remain silent. The Green Paper also discusses
the exceptions to the principle, including those cases where the
court may draw inferences from the silence of the accused once
the prosecution has made out a prima facie case which is
sufficiently strong as to require an answer.[44]
The Commission notes that the European Court has not ruled on
the question of whether the right of silence applies to legal
persons but that the ECJ has held that a legal person has no absolute
right to silence, but may be compelled to answer factual questions.[45]
The Green Paper asks respondents to provide details of how the
right of silence is protected in the various Member States, whether
there is any difference in cross-border cases and the extent to
which legal persons are protected by the right.
18.6 The fifth question asks respondents a similar
series of questions in relation to the right against self-incrimination.
The Green Paper again notes that the ECJ has held that the right
does not apply to legal persons.[46]
18.7 In relation to proceedings conducted in the
absence of the defendant (in absentia proceedings) the
Green Paper indicates that the Commission will produce a Green
Paper on such proceedings but that, in the meantime, it wishes
to establish the circumstances in which it is possible for such
proceedings to comply with the presumption of innocence. Respondents
are asked if such proceedings are possible, and if such proceedings
raise any particular problems with regard to the presumption of
innocence, notably in relation to cross-border situations.
18.8 The Green Paper mentions national counter-terrorism
legislation and asks respondents to describe any particular rules
relating to the presumption of innocence in terrorist cases. A
further question relates to the time when a presumption of innocence
ceases to operate. The Green Paper indicates that the Commission
is interested in the time when a court's finding of guilt has
this effect, as this may be after a trial at first instance or
when an appeal is finally disposed of. A final series of questions
asks respondents if they are aware of any other problems in a
cross-border context which are linked to the presumption of innocence,
whether such problems are related to differences in approach between
jurisdictions and whether EU proposal could add value in this
area.
The Government's view
18.9 In his Explanatory Memorandum of 7 June 2006,
the Attorney General (Lord Goldsmith QC) states that the Government
is not satisfied that the presumption of innocence is a proper
area for action at EU level and that a Commission initiative in
this area is neither necessary nor desirable.
18.10 The Attorney General makes the following observations:
"The Green Paper refers (paragraph 2 of
section 1.1) to the Commission's original intention that evidence-based
safeguards, of which this is a part, would be pursued following
work on procedural safeguards. However the draft Framework Decision
on Procedural Safeguards introduced by the Commission in 2004
has run into major difficulties, with the original text as proposed
by the Commission abandoned, and a much more general text now
being considered. Even so, a number of Member States continue
to contend that there is no legal basis for legislation in this
area. Others have voiced very serious objections about the impact
of such EU legislation upon the ECHR. Against this background
the prospects of making progress in the even more challenging
area of evidence-based safeguards seem poor indeed.
"We consider that our domestic arrangements
in all the jurisdictions in the UK guarantee the rights of individuals
in accordance with the ECHR. The law in England and Wales alone
is very complicated on these issues. There are major differences
between our common law systems and the civil law systems which
characterise much of the rest of the European Union. A legislative
approach designed to harmonise systems across EU Member States
would be likely to require significant changes to our primary
legislation for which we see no need. We trust that responses
to the Green Paper will show the unwisdom of pursuing legislative
measures at this time."
Conclusion
18.11 We thank the Attorney General for his forthright
Explanatory Memorandum with which we entirely agree. The Commission
rightly refers to the case law of the European Court of Human
Rights to show the nature and scope of the presumption of innocence
as it is recognised at a European level.
18.12 In our view, this case law shows that the
field is already occupied by the ECHR and that initiatives at
EU level will serve only to create ambiguity and confusion. We
therefore agree with the Attorney General that such initiatives
would be unwise.
18.13 We shall look forward to receiving a copy
of the UK's formal response. In the meantime, the Green Paper
is effectively spent, and we are content to clear it from scrutiny.
42 See Coffin v. United States 156 US 432 (1895)
for a review of the history, including the Roman and common law
origins of the principle. Back
43
Heaney and McGuiness v. Ireland Case No 34720/97 (21 December
2000) which concerned a failure to give account of one's movements,
contrary to s.52 of the Offences Against the State Act 1939. Back
44
See Murray v. UK Case No 18731/91 (8 February 1996). Back
45
Cf Orkem v. Commission Case 374/87 [1987] ECR 3283. The
case concerned a competition inquiry conducted by the Commission
into infringements of Articles 81 and 82 EC. Back
46
See Mannesmannröhrenwerke v. Commission Case T-112/98,
ECR 729 Back
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